Commonwealth Numbered Acts

TELECOMMUNICATIONS AMENDMENT ACT 1994 No. 67 of 1994 - SECT 15

Insertion of new sections
15. After section 238 of the Principal Act, the following sections are
inserted in Division 1:

AUSTEL may disallow anti-competitive tariff

"238A.(1) This section applies in relation to a tariff if:

   (a)  a carrier is in a position to dominate a market for a particular kind
        of telecommunications service; and

   (b)  that kind of telecommunications service is included in a tariff of the
        carrier.



"(2) If, in AUSTEL's opinion, the operation or continued operation of the
tariff would be anti-competitive in any market for any telecommunications
service, AUSTEL must give the carrier written notice stating that AUSTEL is
disallowing all or any of the provisions of the tariff.



"(3) The notice must set out why AUSTEL is of the opinion that the operation
or continued operation of those provisions of the tariff would be
anti-competitive in that market.



"(4) AUSTEL's power to disallow provisions of a tariff under this section may
be exercised:

   (a)  at any time during which the tariff is in force; and

   (b)  if the tariff is a BCS tariff-at any time after a carrier gives AUSTEL
        a copy of the tariff or a variation of the tariff and before the
        tariff comes into force.



"(5) To avoid doubt, AUSTEL's powers of disallowance under this section may be
exercised in relation to provisions of a BCS tariff whether or not complying
with section 197 in relation to the tariff will result in a contravention of
section 183 or 184.



"(6) Subject to subsection (11), the disallowance takes effect on the day
specified in the notice for that purpose.



"(7) The day so specified must not be a day occurring more than 5 days after
the day on which the notice was given.



"(8) Subject to subsection (10), AUSTEL may state in the notice that the
disallowance does not apply:

   (a)  for specified purposes; or

   (b)  in relation to persons of a specified kind to whom the carrier
        supplies the service; or

   (c)  for specified purposes in relation to persons of a specified kind to
        whom the carrier supplies the service.



"(9) AUSTEL may revoke or vary such a statement at any time.



"(10) The statement (including such a statement as varied under subsection
(9)) must not relate to supply of the service to persons to whom the carrier
was not supplying the service at the time the disallowance takes effect.



"(11) If the statement so specifies, the tariff, or the disallowed provisions
of the tariff, continue to apply as specified in the statement:

   (a)  for the period specified in the statement for the purposes of that
        continued application; or

   (b)  if no such period is specified-for so long as the tariff remains in
        force.



"(12) Notices, and revocations or variations of statements in notices, are to
be made public in the way AUSTEL thinks appropriate.



"(13) A carrier must not demand or receive payment of a charge for the supply
of a telecommunications service to a person if:

   (a)  the charge is worked out in accordance with a tariff, or provisions of
        a tariff, that have been disallowed under this section; and

   (b)  the whole or a part of the charge is attributable to a period
        occurring after the tariff, or the provisions of the tariff, were
        disallowed.



"(14) For the purposes of this section, the operation or continued operation
of a tariff is taken to be anti-competitive in a market if and only if:

   (a)  the operation or continued operation of the tariff, or provisions of
        the tariff; or

   (b)  the operation or continued operation of the tariff, or provisions of
        the tariff, in conjunction with other tariffs or commercial
        arrangements; has, or is likely to have, the effect of materially and
        adversely affecting the development and/or maintenance of commercially
        sustainable competition in that market.

Certain tariffs, and variations of certain tariffs, not to come into force for
an extended period   "238B.(1) Subject to subsection (3), a BCS tariff of a
carrier that is a tariff in relation to which section 238A applies does not
come into force before:

   (a)  the 15th business day after a carrier has given AUSTEL a copy of the
        tariff; or

   (b)  if AUSTEL notifies the carrier in writing that the tariff may come
        into force on an earlier day-that day.



"(2) Subject to subsection (3), a variation of a BCS tariff of a carrier that
is a tariff in relation to which section 238A applies does not come into force
before:

   (a)  the 15th business day after a carrier has given AUSTEL a copy of the
        variation; or

   (b)  if AUSTEL notifies the carrier in writing that the variation may come
        into force on an earlier day-that day.



"(3) Subsection (1) does not apply to a tariff, and subsection (2) does not
apply to a variation of a tariff, if the tariff or variation was already in
force at the commencement of this section.



"(4) The giving of a notice under paragraph (1)(b) or (2)(b) in relation to a
tariff or variation of a tariff does not prevent AUSTEL exercising any power
it has under this Act to disallow the tariff or variation.



"(5) This section does not affect the operation of subsection 190(4) or
192(3).

Minister may give directions to AUSTEL   "238C.(1) The Minister may, by
written notice, give to AUSTEL directions about how AUSTEL is to perform its
functions under section 238A.



"(2) Without limiting subsection (1), a direction under that subsection may
contain any one or more of the following:

   (a)  a requirement that AUSTEL develop a decision-making framework for the
        performance of its functions under section 238A;

   (b)  principles to which AUSTEL must have regard in considering whether to
        disallow provisions of a tariff under section 238A;

   (c)  requirements about the way in which AUSTEL is to develop the
        decision-making framework;

   (d)  the matters to which AUSTEL must have regard in considering whether
        the operation or continued operation of a tariff would (within the
        meaning of section 238A) be anti-competitive in a market for a
        telecommunications service;

   (e)  a description (whether exhaustive or not) of circumstances in which
        AUSTEL must consider whether the operation or continued operation of a
        tariff would (within the meaning of section 238A) be anti-competitive
        in a market for a telecommunications service;

   (f)  a requirement that AUSTEL develop procedures that it is to follow in
        considering whether to disallow provisions of a tariff under section
        238A.



"(3) This section does not affect:

   (a)  the Minister's power to give AUSTEL directions under other provisions;
        or

   (b)  AUSTEL's power to give carriers directions under section 46; about
        other matters.

"(4) A direction under this section is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.

Directions to have general application only   "238D.(1) A direction under
section 238C must not direct AUSTEL to disallow provisions of a particular
tariff, or particular provisions of a tariff.

"(2) A direction is invalid so far as it contravenes subsection (1).".